Author Name:   srabanee1991

deals with the laws (both codified and uncodified) and customs prevailing among the tribal in India....

 “Tribal laws and customs in India”

India’s population includes nearly one hundred million tribal people. These numbers are matched only by the remarkable diversity of India’s tribes. The two main regions of tribal settlement are the country’s north-eastern states bordering China and Burma, and the highlands and plains of its central and southern regions. The latter is home to more than 80 per cent of the tribes, which differ from the north-eastern tribes in ethnicity and in having experienced greater “intrusion of the Indian mainstream and of the pan- Indian model of the state, society, economy and culture.” There are also differences in the extent to which the tribes interact with non-tribal communities. While the north-eastern tribes are usually isolated communities, the tribes in peninsular India may at times coexist with non-tribal people. Despite some regional variation, the tribes share many traits, including living “in relative geographical isolation,” and being “relatively more homogeny” and “more self-contained than the non-tribal social groups.”Consequently, several tensions (both perceptible and obscure) pervade relations between tribes and non-tribes, on the one hand, and the tribes and the State, on the other. The conventional, and largely accepted, solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity, and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development.

Although relatively simple to capture as a concept, India has struggled to maintain the balance in practice. The most common problems relate to recognizing that the tribes have a right to autonomy and not merely decentralized administration; that they have a right to seek justice within their own traditional or customary laws; and that they have a right to own and exploit the natural resources in their habitat. These issues are addressed in the Constitution of India (“Constitution”) and through tribal-people-specific statutes, but there are considerable differences in the way the northeastern and peninsular tribes are treated in the Indian legal system. The distinction in the law is based on the two criteria that had guided the colonial British Indian government in determining the degree of self-government that the tribes would exercise: (a) whether the tribe had the ability to manage its own affairs, and (b) whether the tribal region in question had a significant non-tribal population. Judged by these two criteria, the north-eastern tribes—who are also isolated but seen to be more ‘socially advanced’—have been given considerable autonomy under the Constitution, while the tribes in the rest of the country have been placed under the aegis of provincial governors. This arrangement has been codified in the Constitution’s Fifth Schedule for tribes in peninsular India, and the Sixth Schedule for the northeastern tribes. The separate systems were approved by the Constituent Assembly formed at the time of independence after receiving recommendations that the distinct ‘community structures’ and ‘attitudes’ of the tribes in the two regions could not be treated in a common law. Though an overwhelming majority of India’s tribal people inhabit the fifth schedule areas, they were only recently introduced to decentralization when the Indian Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA) exclusively for these areas. PESA mandated the states to devolve certain political, administrative and fiscal powers to local governments elected by the communities (whether tribal or non-tribal). PESA did not amend the Fifth Schedule, however. Instead, it sought to secure the participation of the tribal communities through limited selfgovernment, expecting this arrangement to be better suited to their ‘level of advancement’. After a decade, it is apparent that PESA is clearly not achieving that objective. On the contrary, blatant violation of tribal interests and the reluctance (in some cases, sheer procrastination) of the state administrations to cede authority have often compelled tribes in the Fifth Schedule areas to reassert their identity and rights violently. Yet, there has never been a serious debate about alternative schemes for governing the tribal regions in peninsular India, even though various developments in the past few years—the creation of two new states, Jharkhand and Chhattisgarh, in 2000 through tribal political movements, the soon-to-be introduced revision of the National Tribal Policy, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act passed in December 2006, which grants tribes some measure of ownership in forest lands and produce for the first time—emphasize that tribal rights are increasingly figuring as a prominent national concern.

Background: Federalism and tribal governance in India
The Constitution of India establishes a detailed federal structure in which legislative authority is divided between the Indian Parliament and the central government (“the Union”) on one hand and the state legislatures and governments on the other. “Local government, that is to say local authorities for the purpose of local self-government or village administration” is a subject of state legislation. These local governments are of two types—local governments in the urban areas (termed “municipalities”) and those in the rural areas (traditionally, and now statutorily, called “Panchayats”). Though states could invoke their jurisdiction under the Seventh Schedule of the Constitution to legislate for municipalities and Panchayat when required, 40 years of experience revealed that power remained captured within state administrations and the local governments were non-functional. Therefore, in 1992 the Indian Parliament decided to decentralize state executive and legislative authority by adding two entirely new parts to the Constitution. Part IX required the states to establish local government bodies (or Panchayats) in rural areas, while Part IX-A similarly mandated municipalities in urban areas. The intention was “to enshrine in the Constitution certain basic and essential features” of such local bodies “to impart certainty, continuity and strength to them.” The state legislatures were then tasked with determining—through departmental rule-making or statute—the precise political, administrative and fiscal authority that such local bodies would exercise. While Part IX broadly lays down the composition and jurisdiction of the local governments, the states, as mentioned earlier, have a significant role to play in this scheme. Almost all the provisions in Part IX require implementation through state law. Initially, Part IX was intended to create local governments only in nontribal rural areas. With the introduction of PESA in 1996, however, Part IX was extended (albeit exclusively) to the Fifth Schedule tribal areas. Thereafter, states that had jurisdiction over these areas were to somehow foster tribal self-government, even though the Fifth Schedule was not amended and continued to perpetuate state government control in tribal affairs. The resultant legal scheme in place today thus appears inherently unworkable.

In the following sections I will provide a summary of the relevant constitutional and PESA provisions, and examine their impact on tribal governance in peninsular India.

The Authority of the Centre and the States in Tribal Affairs
The Fifth and Sixth Schedules of the Constitution

The term “Scheduled Areas” denotes the tribal regions to which either the Fifth Schedule or the Sixth Schedule applies. The two Schedules have very different mechanisms for governing their jurisdictional areas.

The Fifth Schedule was, until PESA was legislated, an entirely centralized system where the communities—the majority being tribal—were directed in their affairs by provincial governors. The Schedule permitted the states to extend their executive power to the Scheduled Areas, and granted the Governor of each state the authority to “make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.” The Governor was thus the “sole legislature for the Scheduled Areas and the Scheduled Tribes,” competent to make laws on all subjects enumerated in the Constitution’s Union, State, and Concurrent Lists. The Governor could also preclude the application of any federal or state law in the Fifth Schedule areas. Gubernatorial authority was “of a very wide nature” and subject to only two restrictions: (i) that the Governor would consult a Tribes Advisory Council “before making any regulation”; and, (ii) that all regulations would receive Presidential assent before taking effect. In contrast, the Sixth Schedule has always given the tribes considerable autonomy. This Schedule divides the tribal areas in India’s north-eastern states into “autonomous” regions, each allocated to a particular tribe. The elected councils in the Sixth Schedule areas are vested with administrative authority, make laws with respect to a variety of subjects, and even exercise judicial authority through traditional legal systems embedded with certain features of federal law. The councils are also financially independent and do not labour under the executive authority of the states. Though the Sixth Schedule’s scheme renders all exercise of executive and legislative authority by the councils subject to the approval of the provincial Governor, the superior courts have interpreted the Governor’s authority to be considerably restricted. The Indian Supreme Court’s decision in Pu Myllai Hlychhoclarified that even though the Sixth Schedule is not a “self-contained code”or a “Constitution within the Constitution,” the courts must nevertheless defer to the legislative, administrative and judicial independence that the Schedule grants District and Regional Councils. There were two reasons for the different treatment that the tribes received. First, the tribes in Fifth Schedule areas were considered incapable of self-government. Second, unlike the Sixth Schedule areas, some tribal communities in peninsular India coexisted with a minority non tribal population, and autonomy for the tribes in such a case seemed impractical. These were considerations that had been settled well before independence, so that by voting on the inclusion of the Fifth Schedule in the Constitution the founding fathers were, in a sense, continuing the colonial typecast that the tribes’ contentment depended not so much on “rapid political advance as on experienced and sympathetic handling, and on protection from economic subjugation by the non-tribal neighbours.” Even the Supreme Court of India later endorsed this paternalist justification when it said that “The tribes need to be taken care of by the protective arm of the law, so that they may prosper and by an evolutionary process join the mainstream of the society.”

The Panchayat (Extension to Scheduled Areas) Act 1996
In 1996, however, Parliament exercised its reserved legislative authority to extend the provisions of the Constitution’s Part IX exclusively to the Fifth Schedule areas. As a result, any habitation or hamlet “comprising a community and managing its affairs in accordance with traditions and customs” could now exercise limited self-government.

After PESA was enacted, communities in the Fifth Schedule areas (the majority of whom were tribal) were directed to follow democratic elections, conform to the hierarchical Panchayat system stipulated in Part IX, and exercise the powers thought “necessary to enable them to function as institutions of self-government.” On the other hand, while devolving power to the local communities the states were to ensure that (i) their laws comported “with the customary law, social and religious practices and traditional management practices of community resources,” and (ii) the Gram Sabhas (bodies “consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level”) were “competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.” PESA is therefore considered by many as a “logical extension of both the Fifth Schedule” and Part IX of the Constitution. But, as innocuous as it may seem, this—top-down—model has in the last 10 years progressively denied tribal communities self-government and rights to their community’s natural resources.

A Review of PESA: Tribal Laws and the Impairment of Tribal Rights in a Decentralized Government
Even though PESA is projected as legislation transforming tribal representation in Fifth Schedule areas, the tribes feel as much “culturally deprived and economically robbed” as under colonial rule. Neither PESA in the last decade, nor the Fifth Schedule before it, has helped the tribal communities “acquire the status and dignity of viable and responsive people’s bodies,” as Parliament had intended. Tribal local governments are often ignored in development plans and the benefits of any actual development “rarely percolate down to the local tribes,” which are “subordinated to outsiders, both economically and culturally.” PESA and the Fifth Schedule have also not prevented large corporations from gaining “control over the natural resources which constituted the life-support systems of the tribal communities;” neither have they made the tribes prosperous from the mineral-rich land on which they live. In fact, the tribes have “gradually lost control over community resources such as forests” to both settlers and the State; and one author would go so far as to equate non-tribal acquisitions with tribal displacement.

Deceit and the active connivance of state employees with non-tribal communities is another debilitating factor reversing, in this case, the benefits of land reform legislation. Shankar’s study of tribal lands in the northern state of Uttar Pradesh revealed a nexus between traditionally influential nontribal landowners and corrupt government officials. The latter exercised their discretionary powers to favour non-tribes by transferring lands over which tribal communities may have had a valid claim. Even in a tribal majority state like Jharkhand in the north, the tribes are the worst affected in the population since the state government’s mining operations and hydroelectric power projects exploit natural resources in the resource-rich tribal areas, thus making the tribes “outsiders in their own land.”

Faced with this onslaught, many tribes have resisted settlers, the government and private enterprises, and sought to reassert their identity. For instance, in the Bengal region the Kamatapur tribal movement has cited neglect, exploitation, and discrimination, and demanded a separate state. Tribes in the neighbouring state of Orissa have demanded a prohibition on private consortiums that intend to mine bauxite from one of the most richly endowed regions in India. Similarly, in the south, Kerala’s tribal population has recently begun to defend its rights by banding together in various political groups at the state and local community levels in order to compel the administration to review land alienation, poverty, and exploitation by private enterprises. It is far too easy to dismiss these incidents as mere consequences of “misplaced development strategies” and lack of interest among state administrations. The critics of tribal governance in India see the dangers in an extremely narrow compass, criticizing provisions in PESA as “impracticable” or the states as legislatively ignorant. In sum, they believe that good civil administration alone will assuage tribal woes.

The Anathema of State Legislative Incompetence
To begin with, PESA only marginally altered the power balance between state governments and the tribes because of ineffectual participation by the former, and the “general tendency at the state level to monopolize power rather than share power with people at large.” This apathetic attitude has manifested itself in two forms. First, the majority of the states with tribal populations procrastinated in their decentralization programs. Although all states with Scheduled Areas have now enforced PESA, their past dilatory performance has led to the risk of delays in future amendments necessary to reflect changed circumstances.

Second, when they did legislate, the states either ignored tribal “customary law, social and religious practices and traditional management practices of community resources” or enacted incomplete laws. Samal gives one such example: though PESA stipulates a community as the basic unit of governance, the Orissa Gram Panchayat (Amendment) Act of 1997 conferred authority on the larger Gram Sabha comprising all communities in a demarcated territory. As a result, the Orissa legislation disregarded the “distinct socio-cultural practices and different interests” of the individual communities within that territory.

The unenthusiastic response of the states appears to be a product of policies advocated by the first national commission on Scheduled Areas and Scheduled Tribes established in 1960. The Dhebar Commission, as it was known, allegedly did not favour the creation of more Scheduled Areas in the country, and is said to have considered the Fifth Schedule “as a temporary expedient” until the tribes were brought on par with the rest of society. The Commission’s 1961 report thus gave “State Governments, which had ‘openly’ or ‘subtly’ practised the art of rebalancing demographic equations in tribal areas an alibi to stall demands for ‘tribal republics’.” The later realization that assimilation alone could not be the solution to tribal underdevelopment caused Parliament and the federal executive to change tack, but the damage had already been done. The states which exercised actual authority in the Scheduled Areas had settled into a mode of governance predicated on the belief that programmatic state-supervised development was the only solution to primitive tribal societies. Attempts to devolve decision-making powers upon tribal communities have since been largely unsuccessful because the primary responsibility for implementing PESA remains the prerogative of those very states. This reinforces the view that self-government is, in many ways, a privilege granted to the tribal communities rather than an inherent right.

The Tribal Struggle to Cope with Imposed Laws
Contrary to PESA’s guarantees that state laws would respect tribal customs and traditions, the Act has debased the tribal traditions of self-governance. The propensity to violate tribal norms is not only a product of sub national apathy, but also the outcome of a statutory scheme that compels the tribes to adopt non-tribal concepts. By promoting the system of local government prescribed for non-tribal communities in Part IX of the Constitution, the Indian Parliament has instantly abolished centuries-old systems of Indigenous governance.

The abrupt shift from traditional institutions to alien concepts of elected representatives and Panchayats has resulted in “very low” tribal participation and an underutilization of the institutions. Thus, for example, the Lanjia Saoras, a tribe in the state of Orissa, have been unable to adopt the electoral system of government mandated by Part IX of the Constitution, as have the Santals. Similarly, the tribes in Madhya Pradesh that were asked to adopt the Panchayat form of government have not seen “the importance of Panchayat for their own welfare or societal development,” while in Gond and Bhil societies the Panchayat system eroded the significance of traditional councils and strained ties within the community. A more subtle reason for the tension between the customary and the received is the entrenched perception in India that the tribes are primitive communities with little or no order in society. Of course, such a view can only be seen as a product of the dominant culture’s prejudice against, and ignorance of, the culture of both settled and nomadic tribal peoples, particularly those deemed ‘primitive’, since each of these groups, of course, has its own customs, traditions and laws. The Manki-Munda system in the state of Jharkhand, for instance, competes with state laws enacted to enforce PESA because the tribes prefer their traditional law’s emphasis on collective and consensual decision-making. PESA’s drafters mistakenly believed that an ambiguous directive to the states to design their laws in consonance with such “customary law, social and religious practices and traditional management practices of community resources” would resolve the dichotomy. What they overlooked was the inevitable displacement of indigenous laws and institutions that accompanies the imposition of a non-native system of governance.

India’s Forest Rights Act of 2006
After acrimonious public debate for more than a year since tabling in the parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was passed in the parliament, lower house of Indian parliament, on 13 December 2006. President of India assented to the Bill on 29 December 2006 and the Act came into force. However, the debate since the tabling of the initial bill in December 2005 to the passage of the Act in the Lok Sabha have brought the age-old prejudices against the tribal peoples to the fore and further eroded their rights.

The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced stiff opposition from two quarters. First, a few environmentalists advocated management of forest, wildlife and other bio-diversity with complete exclusion of tribal people, local communities or forest dwellers contrary to the Rio Declaration, decisions of the Conference of Parties of the Convention on Biological Diversity and recommendations of the United Nations Forum on Forest. The poaching of the tigers in the Sariska sanctuary provided much needed excuse. Second, the Ministry of Environment and Forest had opposed the Bill on the ground that implementation of the bill will result in the depletion of the country's forest cover by 16 per cent. This reflects the culture of the tribal peoples to conserve forest. On the other hand, the Ministry of Environment and Forest has diverted 73% (9.81 lakh hectares of forestland) of the total encroached areas for non-forest activities such as industrial and development projects.

Following objections to the 2005 Draft Bill, it was referred to the Joint Parliamentary Committee (JPC) headed by V Kishore Chandra S Deo of the Congress party. On 23 May 2006, the JPC submitted its recommendations on the issue of cut-off date, inclusion of all forest dwellers under its purview, increase in the ceiling on land occupation and the empowering of Gram. Many of the recommendations were against the intended beneficiaries i.e. tribals. The Ministry of Tribal Affairs objected to some of these recommendations of the JPC. A Group of Ministers (GoM), headed by External Affairs Minister Pranab Mukherjee was established to evolve a consensus. On 15 November 2005, the GoM managed to reach consensus. The Act would not have seen the light of the day had the ‘Other Traditional Forest Dwellers' not included in the revised draft.

A critical examination of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 reveals that the rights of the tribals were further compromised.

However, the recently passed Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 states, “An Act to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.”

The present law has only diluted the interests of the forest dwelling Scheduled Tribes with that of the “Other Traditional Forest Dwellers”. The forest dwelling Scheduled Tribes no longer remain the focus of the law contrary to what it originally envisaged. With such dilution, the law has lost its aims, objectives, essence and spirit that the Ministry of Tribal Affairs initiated with so much fan fare to undo what it calls “historic injustice” that the forest dwelling Scheduled Tribes have been facing. Rather than improving the lot of the tribals, the Act will lead to conflict of interest between the forest dwelling Scheduled Tribes and other traditional forest dwellers.

Increase in the ceiling on land occupation:
Sub-section (6) of Section 4 states, “Where the forest rights recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of sub-section (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.”

This provision hardly benefits the Scheduled Tribes. A large number of forest dwelling Scheduled Tribes would have to mandatorily part with large chunks of ancestral lands that they have been actually occupying before the enactment of this Act. The provision is also inapplicable in the northeast India.

Criminals under the Forest Conservation Act of 1980:
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ensures tenurial security and legitimizes the scheduled tribes' ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/prosecution pending against the tribals under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective view. There is no provision in the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006 providing that cases under the Forest Conservation Act of 1980 against the forest dwelling scheduled tribes for accessing minor forest produce would be dropped.

Conclusion
The tribe in the context of modern Indian society signifies a group of primitive people living in the hills and forests and having their own language and a culture. Obviously there is a wide variation in the social organisation, customs and intuition of the tribes from the general people of India. The tribal societies in India particularly remained till the attainment of independence comparatively isolated from the mainstream of national life.

The introduction of PESA in 1996 definitively signalled the Indian Parliament’s intention to abandon command-and-control for “new governance” in the tribal areas. However, by choosing decentralization the law-makers made the mistake of matching the right idea with the wrong solution. Although decentralization—including its many subtypes: devolution, deconcentration, delegation and divestment—has proven indispensable whenever national or provincial governments have desired local solutions for local problems, the system is demonstrably inapposite for tribal governance. Instead, the right solution is some form of autonomous tribal government grounded in the Indian Constitution and supported by the conventional administration and civil society. Autonomy is preferable to decentralization because while “The decisions of the decentralized organs may be replaced by the state; the decisions of autonomous organs may be annulled but not definitively replaced.” In other words, what I have proposed is “freedom within the law” for almost one hundred million tribal people. This is certainly achievable, and the legal change would be “a highly effective way of transforming ideology to create a sense of entitlement amongst the tribes.”Significantly, this paper examined the constitutional and statutory law governing tribal territories in India rather than reforms in civil administration by state departments and development programs. There were two reasons for this choice. One was that current literature on tribal law in India treats tribal concerns within the “larger problem of efficient implementation of development policies” and bureaucratic apathy, rather than as a distinct issue in constitutional and statutory law requiring more systemic change. The other was that tribal development policies and state administrative departments provide area-specific solutions. The Fifth Schedule, as part of the Constitution, applies to pockets of tribal areas scattered within the peninsular regions of a vast country. Encompassing these issues in a single work runs the risk of trivializing the distinct problems faced by the tribes.

Keeping in view the socio economic backwardness of tribes the framers of Indian constitution provided special privileges for their development in independent India. Gradually according to the call of the situation many laws have been passed and a separate administrative system has been created in order to bring the tribes in the mainstream of our ideal democratic system.
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# W.V. Grigson, “The Aboriginal in the Future India” (1944) 74 J. Royal Anthropological Inst. Gr. Brit. & Ir. 33.
# Chanana Karuna, “Accessing Higher Education: The Dilemma of Schooling Women, Minorities, Scheduled Castes and Scheduled Tribes in Contemporary India” (1993) 26 Higher Educ. 69 at 71.
# Virginius Xaxa, “Empowerment of Tribes” in Debal K. Singha Roy, ed., Social Development and the Empowerment of Marginalised Groups: Perspectives and Strategies (Thousand Oaks, CA: Sage Publications, 2001) at 203.
# Known as the “development-deference dichotomy”. See Shubhankar Dam, “Legal Systems As Cultural Rights: A Rights Based Approach To Traditional Legal Systems Under The Indian Constitution” (2006) 16 Ind. Int’l & Comp. L. Rev. 295 (claiming that development and deference cannot triumph together).
# See “A Spectre Haunting India” The Economist(17 August 2006), online: The Economist .
# Crispin Bates, “‘Lost Innocents and the Loss of Innocence’: Interpreting Adivasi Movements in South Asia” in R.H. Barnes, Andrew Gray & Benedict Kingsbury, eds., Indigenous Peoples of Asia (Michigan: American Association for Asian Studies, 1995) at 103-104.
# See e.g. Amit Prakash, “Decolonisation and Tribal Policy in Jharkhand: Continuities with Colonial Discourse” (1999) 27 Soc. Scientist 113.
# See e.g.Constitution of India, 1950, Art. 15(4) and Art. 15(5). See also R. K. Sabharwal v. State of Punjab, [1995] 2 S.C.C. 745 at para. 4 and Indira Sawhney v. Union of India, A.I.R. [1993]S.C. 477.
# B. Shiva Rao, The Framing of India’s Constitution: Select Documents (Delhi: The Indian Institute of Public Administration, 1967) at 771-772.
# See e.g. Stuart Corbridge, “The Continuing Struggle for India’s Jharkhand: Democracy, Decentralisation and the Politics of Names and Numbers” (2002) 40 Commonwealth & Comp. Pol. 55.
# Constitution of India, 1950, Sch. VII, List II, Entry 5.
# Constitution of India, 1950: amended by the Constitution (Seventy-third Amendment) Act, 1992.
# Ibid.
# The Constitution (Seventy-third Amendment) Bill, 1991, Statement of Objects and Reasons.
# Constitution of India, 1950, Sch. V 2
# Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220
# See Constitution of India, 1950, Sch. V 5(1).
# The Governor’s law-making powers permit even retrospective legislation. See Ram Kripal Bhagat v. State of Bihar, A.I.R. [1970] S.C. 951 at 958, and V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71 at 74.
# Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 at para. 45.
# See Constitution of India, 1950, Sch. V 4.
# See Constitution of India, 1950, Sch. VI 1.
# Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92.
# Contra Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 at para. 11 (“the scheme of the Sixth Schedule … purports to provide for a self-contained code for the governance of the tribal areas”).
# Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92 at para. 21 (“The Sixth Schedule to the Constitution is a part of the Constitution and cannot be interpreted by forgetting the other provisions in the Constitution.”).
# District Council of the Jowai Autonomous District v. Dwet Singh Rymbai, [1986] 4 S.C.C. 38 at para. 11 (“The powers enjoyed by these District Councils cannot be equated with the plenary powers enjoyed by a legislature. Their powers to make laws are limited by the provisions of the Sixth Schedule.”).
# Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] 10 S.C.C. 65 at para. 15. The situation bears a striking resemblance to the United States’ belief that the Native American tribes “were the ‘wards’ of the government in need of protection.”
# Constitution of India, 1950, Art. 243-M(3A)(b), allows “Parliament ... to extend the provisions of this Part [IX] to the Scheduled Areas … subject to such exceptions and modificationsas may be specified in such law.”
# Panchayat (Extension to Scheduled Areas) Act, 1996, s. 4(b).
# Constitution of India, 1950, Art. 243G. The powers are subject to a number of “exceptions and modifications” ranging from general guidelines to specific demarcation of tribal administrative authority.
# Custom is an accepted way of behaving or doing things in a society. In other words custom is a long established practice considered as unwritten law and resting for authority on long consent; a usage that has by long continuance acquired a legally binding force. It is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior.
# PESA, s. 4(a).
# Ibid., s. 4(c).
# Ibid., s. 4(d). The specific powers of the village governments are set forth in clauses (e) through (m) in section 4 of PESA
# H.L. Harit, “Tribal Areas and Administration” in Rann Singh Mann, ed., Tribes of India:Ongoing Challenges (New Delhi: M.D. Publications, 1996) 49 at 53.
# R.K. Barik, “Faulty Planning in a Tribal Region: The Dandakaranya Development Authority” in Govinda Chandra Rath, ed., Tribal Development in India—The Contemporary Debate (New Delhi: Sage Publications, 2006) 92 at 101.
# Kripa Shankar, “Land Alienation among Tribals in Uttar Pradesh” in Govinda Chandra Rath, ed., Tribal Development in India—The Contemporary Debate (New Delhi: Sage Publications, 2006) 169
# Sajal Basu, “Ethno-regionalism and Tribal Development: Problems and Challenges in Jharkhand” in Govinda Chandra Rath, ed., Tribal Development in India—The Contemporary Debate (New Delhi: Sage Publications, 2006) 133.
# A. Damodaran, “Tribals, Forests and Resource Conflicts in Kerala, India: The Status Quo of Policy Change” (2006) 34 Oxford Dev. Stud. 357.
# See India, Ministry of Tribal Affairs, Draft National Tribal Policy (New Delhi: Government of India,2006) at 21.
# Dr. B.D. Sharma, The Fifth Schedule, vol. 1 (New Delhi: Sahyog Pustak Kuteer Trust, 2000) at 72.
# See e.g., India, 37th Report of the Standing Committee on Urban and Rural Development: Implementation of Part IX of the Constitution(New Delhi: Government of India, 2002).
# Damodaran, “Result of skewed development?” The Hindu (27 April 2003), online: The Hindu
# See India, Report of the Scheduled Areas and Scheduled Tribes Commission 1960-61 (New Delhi: Government of India, 1961).
# PESA, s. 4(a).
# Yatindra Singh Sisodia, “Tribal People’s Empowerment through Grassroots Level Institutions: A Case of Madhya Pradesh” in D.C. Shah & Yatindra Singh Sisodia, eds., Tribal
# Issues in India (New Delhi: Rawat Publications, 2004) at 107.
# Nityananda Das, “The Tribal Situation in Orissa” in K. Suresh Singh, ed., The Tribal Situation in India (Shimla: Indian Institute of Advanced Study, 2002) at 178.
# S.N. Chaudhary, “Tribal Leadership in Panchayats: A Study of their Profile, Performance and Plan” in D.C. Sah & Yatindra Singh Sisodia, eds., Tribal Issues in India (New Delhi: Rawat Publications, 2004) at 117.
# Bhubneshwar Sawaiyan, An Overview of the Fifth Schedule and the Provisions of the Panchayat (Extension to the Scheduled Areas) Act, 1996 (Commonwealth Policy Studies Unit, 2002) at 4-5, online: Commonwealth Policy Studies Unit Bhubnesh.pdf>.
# This is despite the fact that over 60% of the country's forest cover is found in 187 tribal districts where less than 8% of national population lives.
# Rather than empowering, this law seeks to dispossess the forest dwelling Scheduled Tribes of their ancestral lands that they have in possession in excess of 4 hectares as provided in Sub-section (6) of Section 4. Nor the Bill provides for compensation to those who will be forced to share their lands in excess of 4
# William L.F. Felstiner, Richard Abel & Austin Sarat, “The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming …” (1980-81) 15 Law & Soc’y Rev. 631 at 643.
# Yashwant Govind, Development in Overexploited Tribal Regions (New Delhi: Inter-India Publications, 1990) at 17 (“It has rightly been stressed by Prof. Sundaram (1982) that there can be no single and invincible solution … and each area’s situation has to be analysed in its particular context.”).

The  author can be reached at: srabanee@legalserviceindia.com

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